Supreme Court Justice Neil Gorsuch last week suggested in arguments that former presidents like Donald Trump should have some immunity, otherwise future presidents would be targeted after leaving office.
“It didn’t matter what the president’s motives were ... that’s something courts shouldn’t get engaged in ... I am concerned about future uses of criminal law to target political opponents based on accusations about their motives,” the Supreme Court justice said on April 25.
Justice Gorsuch, who was appointed by President Trump, made the comment as he and the eight other justices were hearing arguments on whether former President Trump should be declared immune from prosecution in an election-related case that was brought by special counsel Jack Smith. The former president appealed that case, saying he should enjoy absolute immunity.
During the hearing, Justice Gorsuch suggested that future presidents could potentially pardon themselves before leaving offices if the Supreme Court doesn’t rule that presidents should enjoy at least some immunity. The justice then said he doesn’t want to have to make a decision on whether a president can use that authority.
“We’ve never answered whether a president can do that; happily, it’s never been presented to us,” Justice Gorsuch said of whether a president can issue a pardon to himself before leaving office.
He and several other conservative-leaning justices said that they were less concerned about President Trump’s charges but more concerned about the Supreme Court’s ruling on immunity in general. “We’re writing a rule for the ages,” he stated.
During the hearing, many of the Supreme Court justices appeared to be somewhat skeptical that President Trump should be declared absolutely immune from prosecution in Mr. Smith’s case. But some of the justices signaled that a recent District of Columbia appeals court ruling that rejected President Trump’s immunity arguments should be revisited.
Justice Samuel Alito also noted that “whatever we decide is going to apply to all future presidents.”
Each time Justice Department lawyer Michael Dreeben sought to focus on President Trump, Justice Gorsuch and Justice Brett Kavanaugh jumped in. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Justice Kavanaugh said.
Meanwhile, Mr. Smith’s team is asking for a speedy resolution. The court typically issues its last opinions by the end of June, about four months before the election. U.S. District Judge Tanya Chutkan, who would preside over the trial, said pre-trial issues could take up to three months.
Before the Supreme Court, President Trump’s attorney D. John Sauer argued that former presidents should be declared absolutely immune for acts they did under their official capacity as president. If not, prosecutors motivated by a political animus could target them after they leave the Oval Office with spurious charges, he added.
But some of the justices, including Chief Justice John Roberts, signaled that presidents should not be able to escape all forms of prosecution. He asked about a hypothetical scenario in which a president is indicted for receiving a bribe in exchange for an ambassadorial appointment. “That’s like a one-legged stool, right?” he asked.
President Trump said he wanted to be at the Supreme Court on April 25. Instead, he was in a courtroom in New York, where he was standing trial on charges that he falsified business records to keep damaging information from voters when he allegedly directed “hush money” payments to an adult film performer to keep quiet her claims that they had an alleged encounter, which he denies.
